The EU Copyright Directive: Myth vs. Fact

The EU Copyright Directive includes Article 11, also known as the Publishers’ Right*, which would allow news publishers to copyright their content, a fundamental right currently afforded to news publishers in the U.S. The global news industry wholeheartedly supports this endeavor and supports passage of the EU Parliament’s version of Article 11 in the current negotiations leading up to an EU vote in early 2019.

Below, we have addressed some common myths and misperceptions about the law, what it does and does not do, and to whom it applies.

*Note, we use Article 11 and Publishers’ Right interchangeably below, as they refer to the same proposed law under deliberation in the EU.

Responses to Google Claims:

On December 11, 2018, European news publishers sent an open letter to the Council’s attachés ahead of the last scheduled meeting of the negotiators (on Dec. 13). See the letter here.

The EU Copyright Directive: Myth vs. Fact

MYTH: News publishers in the European Union already enjoy copyright protection and can control the use of their publication’s content online.FACT: No. Unlike American publishers, who enjoy constitutional and statutory protections, European publishers do not have an individual right to protect their content against infringement online. Instead, many rely on contracts with individual journalists, making effective enforcement cumbersome and time-consuming.

MYTH: Under the current proposals, if adopted, publishers would be forced to demand compensation from online service providers and news aggregators, who would be forced to pay for the use of their content.FACT: No. The Parliament’s version of the Publishers’ Right would not be compulsory. It would simply allow news publishers to negotiate licensing agreements with businesses that wish to use their content online.

MYTH: The Publishers’ Right would destroy the internet.FACT: No. Other industries (e.g. music, film, etc.) already enjoy similar neighboring rights, and these have not “destroyed the internet.” Individual and other nonprofit use would still be allowed at no cost under the proposed Directive.

MYTH: The Publishers’ Right is effectively a “link tax.”FACT: No. Taxes can only be levied by governments and cannot be negotiated. Article 11 would simply allow private businesses to negotiate with each other to reach a mutually satisfactory compromise. Further, hyperlinking is explicitly permitted under the Parliament’s version of Article 11.

MYTH: The Copyright Directive would prohibit consumers and businesses from sharing links.FACT: No. The proposal explicitly permits the sharing of hyperlinks, thereby allowing businesses and users to continue linking to news articles freely.

MYTH: The proposal would prevent individual users from posting news articles in their social media profiles or otherwise, amounting to censorship of free speech.FACT: No. The Parliament’s version, as well as the latest compromise draft, would explicitly allow legitimate private and non-commercial use for free. The proposal would not affect private individuals who do not wish to make a profit by using protected news content.

MYTH: Similar attempts to establish a Publishers’ Right failed miserably in Spain and Germany.FACT: No. With regards to Germany, the validity of the law creating a neighboring right for news publishers is currently being litigated, and it is therefore much too early to draw conclusions about its success. Meanwhile, in Spain, while publisher ad revenues and traffic went down briefly following Google’s ill-advised decision to shut down Google News in the country, these have since largely rebounded and publishers have started licensing their content to other news aggregators, creating competition and varying options for consumers.

MYTH: The Publishers’ Right would benefit the big players and make it harder for new entrants and small businesses to innovate and succeed.FACT: No. The proposal would create legal certainty for both news publishers and tech companies alike. News publishers could develop more innovative content and services, while tech start-ups would not have to deal with different legal systems and requirements.

MYTH: News aggregators already benefit news publishers more than enough, so there is no need for publishers to get more from online services.FACT: No. While news organizations receive some traffic through news aggregators, 47 percent of Europeans who access news through news aggregators, online social media, or search engines, do not click on the links to access the original articles. Though news organizations invest considerable resources into producing original content, online platforms instead reap most of the benefits.

MYTH: The European Parliament and the Council’s versions of the Publishers’ Right are essentially the same and it doesn’t matter which one is eventually adopted.FACT: No. The Council’s version would establish an unenforceable “insubstantiality” standard and would leave it up to the member states to decide how to define it – undermining the original purpose of the Directive. The Parliament’s version, meanwhile, presents a sensible and fair compromise that would provide legal certainty to publishers and online platforms alike.

MYTH: The Publishers’ Right would reduce the authors’ rights and benefit news organizations at the expense of journalists.FACT: No. The proposal makes clear that the Publishers’ Right would not have an effect on the rights held by the original author. In addition, the Parliament’s draft as well as the most recent compromise proposal require revenue-sharing with the journalists.

MYTH: News publishers would have more protections than other content industries, such music and film.FACT: No. Film and music industries already enjoy similar neighboring rights that allow them to protect their content. The Publishers’ Right would put news publishers at the same level with other producers.

MYTH: Google and other online services are doing a service to publishers by directing traffic to their sites, and don’t actually benefit themselves from sharing news content.FACT: No. Google and other online businesses utilizing news content make money every time someone uses their services. They have large financial incentives to keep using news content for free while receiving ad dollars from increased traffic.

MYTH: The Publishers’ Right is a desperate attempt by struggling news publishers to save their industry by taxing Google and other successful online services.FACT: No. While news aggregators send traffic to news sites, news publishers should be given the same protections enjoyed by other producers of original content. There should be a level playing field when deciding the rules of the game.